1. Applicant's Name: a. Application Date: 12 December 2014 b. Date Received: 1 April 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable and a change to the narrative reason for separation. The applicant through counsel seeks relief contending, in effect, was found not guilty of driving under the influence of alcohol. The chain of command made a material error of discretion by not allowing the justice system to properly adjudicate the alleged DUI arrest. This error of discretion wrongfully caused the applicant to be discharged from the Army, for which the applicant continues to suffer on a daily basis. In a records review conducted at Arlington, VA on 8 August 2018, and by a 4-1 vote, the Board determined that the discharge was too harsh based on the applicant's length of service, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635- 200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 13 December 2012 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 19 November 2012 (2) Basis for Separation: The applicant was informed of the following reason for his discharge; he drove while under the influence of alcohol (22 July 2012). (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 20 November 2012, applicant waived legal counsel. (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 3 December 2012 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 September 2010 / 3 years, 27 weeks b. Age at Enlistment / Education / GT Score: 20 years / HS Graduate / 90 c. Highest Grade Achieved / MOS / Total Service: E-3 / 91B10, Wheeled Vehicle Mechanic / 2 years, 2 months, 24 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant received a negative counseling statement, dated 22 July 2012 for DUI. An administrative General Officer Memorandum of Reprimand (GOMOR), dated 2 August 2012, for DUI. Report of Mental Status Evaluation, dated 24 September 2012, revealed that the applicant was screened for PTSD and mTBI, both screens were negative. He was cleared for administrative action as deemed appropriate by Command. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); attorney's brief (five pages); Exhibit 1, DD Form 214; Exhibits 2 and 3, breathalyzer test results; Exhibits 4 and 5, adverse action flags; Exhibit 6, GOMOR; Exhibit 7, acknowledged receipt of GOMOR; Exhibit 8; filing determination of GOMOR; Exhibit 9, notification of pending administrative separation; Exhibit 10, applicant's election of rights; Exhibit 11, waiver of right to legal counsel; Exhibits 12 and 13, unit commander's memorandum recommending separation; Exhibit 14, battalion commander recommended separating the applicant; Exhibit 15, brigade commander directed the applicant's discharge; and Exhibit 16, State Court of Liberty County, Georgia document, indicates the applicant was found guilty of failure to exercise due care. 6. POST SERVICE ACCOMPLISHMENTS: Applicant's counsel stated in his brief that the applicant has been consistently employed since being discharged and works at Fastening Specialist, Incorporated in Orlando, Florida. He is also enrolled at the Motorcycle Mechanics Institute in Orlando, Florida, he is pursuing his degree to become a Motorcycle Technician Specialist. He has completed 74 of the 108 credits required to attain his degree, he is projected to graduate in 2015 and maintains a 3.61 GPA. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of service from general (under honorable conditions) to honorable and a change to the narrative reason for separation. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct (serious offense), the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant requests a change to the narrative reason for separation. Army Regulation 635- 5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, misconduct (serious offense). The regulation further stipulates that no deviation is authorized. The applicant seeks relief contending, he was found not guilty of driving under the influence of alcohol. Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial. The applicant further contends, his chain of command made a material error of discretion by not allowing the justice system to properly adjudicate his alleged DUI arrest; and this error of discretion wrongfully caused the applicant to be discharged from the Army, for which he continues to suffer on a daily basis. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant's post-service accomplishments have been noted as outlined on the attorney's brief with the application. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 8 August 2018, and by a 4-1 vote, the Board determined that the discharge was too harsh based on the applicant's length of service, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), and the separation code to JKN. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Misconduct (Minor Infractions) d. Change Authority to: AR 635-200, paragraph 14-12a e. Change SPD / RE Code to: JKN / No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20170006840 1